In her complaint, plaintiff alleges four causes of action arising out of the termination of her employment with the Bank: 1) breach of contract, against the Bank; 2) intentional infliction of emotional distress, against her superiors; 3) interference with contract, against her superiors; and 4) breach of the covenant of good faith and fair dealing, against the Bank.

I. THE CONTRACT-RELATED CLAIMS

Defendants argue that plaintiff's claims for breach of contract, breach of the covenant of good faith and fair dealing, and her tort claim for interference with contractual relations each rest upon the premise that plaintiff was "wrongfully discharged" from her employment with the Bank. Defendants contend that plaintiff was neither actively nor constructively discharged, and thus cannot prove that her contract was breached.

A. Can plaintiff's resignation be viewed as a constructive discharge ?

Defendants argue that nothing in plaintiff's deposition testimony or the facts suggest that plaintiff's circumstances at the time of her resignation were intolerable. Plaintiff had been away on medical leave for three months at the time she resigned, and she could have requested an extension of her leave, rather than resign. Alternatively, plaintiff could have elected to return to work. Having foregone these options, defendants maintain that plaintiff cannot now claim that she faced intolerable conditions and was forced to resign.

If plaintiff was not constructively discharged, defendants contend that each of plaintiff's contract-related claims must fail because the contract damages claimed flow exclusively from that discharge.

Plaintiff does not address this argument in her opposition papers and thus has presented no specific facts showing that there remains a genuine issue for trial. However, assuming arguendo that a triable issue of fact exists as to whether defendants engaged in behavior which would lead a reasonable person to resign, this issue is rendered moot by virtue of the analysis set forth below.

B. Did plaintiff have a contractual right to continuing employment ?

Assuming plaintiff did have a constructive discharge claim, defendants argue that she cannot prove the existence of a contractual right to continuing employment with termination for good cause only. Under California Labor Code § 2922 employment which has no specified term may be terminated at the will of either party on notice to the other. Under the holding of the California Supreme Court in Foley v. Interactive Data Corp., 47 Cal. 3d 654, 254 Cal. Rptr. 211, 765 P.2d 373 (1988), because of this statutory presumption of at-will status, the employee must show the existence of an express or implied contract rebutting the presumption of at-will employment and must produce evidence that her termination violated the contract.

In this case, defendants have presented to the court the Agreement of Employment with the Bank which plaintiff signed in 1971 when she first became a Bank employee, which sets forth specific provisions governing termination. In part, the contract provides that the Bank reserves the right to terminate plaintiff's employment, regardless of the existence of good cause, as long as it furnishes two weeks' notice, or pay in lieu thereof. In particular, sections 7 and 8 of the Employment Agreement provide:

"In consideration of my employment by the BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, hereinafter called BANK, I hereby agree to the following terms and conditions . . .

7. I recognize that I shall not become a permanent employee of the BANK until conclusion of a trial period, which shall not exceed three months (90 days), and that during such trial period, I may be released with or without cause without notice and shall then be entitled to my salary at the agreed upon rate to the date of release.

8. If I attain permanent status after the trial period. . . . I shall be entitled to two weeks' notice or one-half month's salary in lieu thereof in case of dismissal unless such dismissal results from my dishonesty, disloyalty, insubordination or other good cause." (emphasis added)

"Section 8 is unmistakably clear that 'permanent employees' are not in fact permanent, but are only entitled to certain benefits upon termination, depending on whether they are dismissed for cause or without cause. Thus, when [plaintiff] signed the contract, she agreed that Bank of America could terminate her with or without cause, so long as the bank complied with the notice and severance provisions set forth in section 8 of the contract." 879 F.2d at 465.

Thus, following the lead of the Ninth Circuit in DeHorney, these provisions of plaintiff's employment agreement create an at-will employment contract, and hence no express contract existed which entitled plaintiff to continuing employment absent good cause. Accordingly, we find that defendants are entitled to summary judgment on plaintiff's claim of breach of contract.

C. Breach of the covenant of good faith and fair dealing

Under California law, the covenant of good faith and fair dealing obliges the parties to a contract to discharge contractual obligations fairly and in good faith, and it is implied into every contract. Foley v. Interactive Corp., 47 Cal.3d at 683 (citations omitted). Defendants maintain that California courts have refused to find a breach of the covenant of good faith and fair dealing where the relationship between the employee and the employer is at will. Plaintiff offers no opposition to this argument.

As with the issue of breach of contract, the DeHorney Court also addressed this issue head on, holding that "in sum, Foley settles California law that when parties have agreed that their contract is terminable at the will of either of them, as is the case here, the implied covenant of good faith and fair dealing cannot be invoked by either party to prevent a court from enforcing the terms of the contract." The district court's grant of summary judgment to the Bank was thus affirmed.

Accordingly, we find, consistent with DeHorney, that defendants must be granted summary judgment as to plaintiff's cause of action for breach of the covenant of good faith and fair dealing.

D. Intentional interference with contractual relations

The tort of intentional interference with contractual relations may be maintained only against those without a privilege to induce one party to breach a contract with another. One who is given a legal privilege to induce a breach is immune from any intentional interference claim. DeHorney, 879 F.2d 459 (9th Cir. 1989); Los Angeles Airways, Inc. v. Davis, 687 F.2d 321 (9th Cir. 1982); Marin v. Jacuzzi, 224 Cal. App. 2d 549, 36 Cal. Rptr. 880 (1964); Wise v. S. Pac. Co., 223 Cal. App. 2d 50, 35 Cal. Rptr. 652 (1963). California law provides that a supervisor or managerial employee is privileged to induce the breach of an employment contract or otherwise interfere with business or economic relations on behalf of his employer. See DeHorney at 464, citing Zumbrun v. Univ. of Southern California, 25 Cal. App. 3d 1, 12, 101 Cal. Rptr. 499 (1972); Lawless v. Brotherhood of Painters, etc., 143 Cal. App. 2d 474, 300 P.2d 159 (1956). "Where an employee acts within the scope of his employment, it does not matter whether his conduct in inducing the breach of contract was motivated by 'ill-will or malice on his part.'" DeHorney at 464, citing Imperial Ice Co. v. Rossier, 18 Cal. 2d 33, 38, 112 P.2d 631 (1941).

Defendants maintain that this pertains to both physical complications arising from the stress and purely emotional claims. Plaintiff argues that in cases where no physical injury or disability is alleged, a civil claim for emotional distress is not barred by the Worker's Compensation Act. Here, plaintiff has alleged physical symptoms as a result of her emotional distress, but contends that these are of the type which do not go to the heart of the action. Instead, the thrust of the case is that plaintiff was singled out for disparate treatment amounting to psychological harassment.

Defendants argue that even if plaintiff's emotional distress claim is not preempted, that claim must fail for lack of proof of outrageous conduct. Plaintiff, on the other hand, argues that circumstances determine what is "outrageous conduct", and that what she was subjected to meets that standard. For support, plaintiff cites the cases of Alcorn v. Anbro Eng'g, Inc., 2 Cal. 3d 493, 86 Cal. Rptr. 88, 468 P.2d 216 (1970), and Rulon-Miller v. International Business Machines Corp., 162 Cal. App. 3d 241, 208 Cal. Rptr. 524 (1984). In the Alcorn case, the court found outrageous conduct existed where the employer used racial epithets and other derogatory conduct directed toward the plaintiff. In Rulon-Miller, the plaintiff was fired after her employer forced her to choose between her job and her lover, who worked for a competitor. The court found outrageous conduct not only by virtue of the fact that the plaintiff had been forced to choose between her personal relationship and work, but also because of the manner in which the discharge was conducted. 162 Cal.App.3d at 255.

a. I was reprimanded for being late to a meeting when my lateness was caused by being unavoidably detained on other company business.

b. I was reprimanded (written up) for conduct that was condoned in my peers.

c. When I declined early retirement, Ms. Kuntz said she would find more work for me to do; and I was assigned additional minor, but time-consuming, detailed tasks.

d. When I became aware that I was being singled out -- persecuted -- I became fearful for my job and was extremely nervous, and made far more errors than I had in any prior similar period of employment.

e. In desperation, I requested and was granted ninety days disability leave. It was my understanding at that time, that in order to qualify for additional leave, I would have to be confined to a mental hospital.

f. At the end of my ninety days leave, I felt that I simply could not return to the bank, and after consultation with my psychologist and my attorney, I resigned.

g. Before I declined early retirement, my relationship with Harry Kimball had been uniformly pleasant and cordial. After March, 1988, the pleasantness was replaced by an attitude of cold, distant formality.

h. When Alpha Accounts were introduced, there was a contest, of sorts, to enlist new accounts. Two of my children opened Alpha accounts at other branches, and Mr. Kimball refused to give me credit for them. I discussed this matter with Jerry Andrews, who said that he considered it "all one Bank of America" and that I should have been given credit.

i. In preparation for this litigation and in opposition to the motion, I have requested statements from several friends of mine who are still employed at the bank. In every instance, the friend was sympathetic, but would not give a statement for fear that they would receive the same treatment that I had received.

We find that the conduct presented by Ms. Siddoway in her affidavit and pleadings does not rise to the level of outrageous conduct required to impose tort liability, as reflected by the cases which we have reviewed. Accordingly, defendants' motion for summary judgment as to plaintiff's claim of intentional infliction of emotional distress is granted.

CONCLUSION

Defendants' motion for summary judgment is granted as to all of plaintiff's causes of action. Judgment shall be entered accordingly.

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